EPA holds all the high cards in this game
West Virginia has joined with a number of other states in the legal fight against the EPA's regulation of greenhouse gas emissions.
It's a worthwhile fight against the EPA's overreach, but one that's going to be difficult to win.
So far, everything has gone the EPA's way.
In 2007 the U.S. Supreme Court, in a 5-4 decision, authorized the EPA to use the Clean Air Act to regulate greenhouse gases. The court followed up two years later with a finding that greenhouse gases endanger public health.
The EPA used those decisions to set a course on climate change that includes using its considerable administrative powers to severely restrict emissions of carbon dioxide and other greenhouse gases from vehicles, factories and power plants.
The carbon limit is so low that it makes it essentially impossible to build a new coal-burning power plant unless there is a breakthrough in carbon capture technology.
Industries and a number of states are now challenging those rules. So far, the EPA has prevailed. The U.S. Court of Appeals for the D.C. Circuit has upheld the EPA's regulatory direction.
So it's on to the U.S. Supreme Court.
The "friend of the court" brief filed by West Virginia Gov. Earl Ray Tomblin and Attorney General Patrick Morrisey asks that the high court hear the appeal.
One of the legal arguments centers on the EPA's "tailor's rule."
That rule says the EPA will regulate only very large sources of carbon dioxide (new sources emitting 100,000 tons per year); however the Clean Air Act says any source that generates at least 100 tons a year of a pollutant must be regulated.
That would be wildly impractical, since it would mean every small business in America would be regulated, so the EPA tailored the rule to apply primarily to large industrial sources.
But those industries, as well as West Virginia and the other states that have filed suit, claim the EPA has "misinterpreted the Clean Air Act and acted outside the scope of its legal and Constitutional authority."
Then there is simply the larger issue of whether Congress, which wrote the Clean Air Act, ever envisioned it to deal with climate change.
It did not, but so far the U.S. Supreme Court has seen it otherwise, and without a substantial change in the make-up of the court, it's hard to imagine a different outcome.
Meanwhile, the legal wrangling adds to the uncertainty of the coal industry and West Virginia's economy. Coal companies and electric utilities have to make decisions based on what they believe the market will be like years from now, and it's apparent that coal is in for a long, tough slog.
Tomblin says he sent President Obama a letter last month urging him to direct the EPA to "discontinue its anti-coal policies."
There's no need for response; the EPA has made his message loud and clear.
Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday. The show can be heard locally on WCHS 580 AM.